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MOSS v. BAILEY SALES AND SERVICE (06/25/56)

June 25, 1956

MOSS, APPELLANT,
v.
BAILEY SALES AND SERVICE, INC.



Appeal, No. 85, March T., 1956, from order of Court of Common Pleas of Lawrence County, March T., 1954, No. 81, in case of I. H. Moss, Samuel Levine, Harry Segal, Sidney Segal, Jules Segal and Benjamin Mossof, trading as Pittsburgh Table Company v. Bailey Sales and Service, Inc. Order affirmed. Assumpsit. Before LAMOREE, J. Compulsory non-suit entered; plaintiffs' motion to take off non-suit refused and final order entered. Plaintiffs appealed.

COUNSEL

Howard W. Lyon, with him Gilbert D. Levine and Donald E. Williams, for appellants.

Alvah M. Shumaker, with him Joseph R. McFate and Caldwell & McFate, for appellee.

Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.

Author: Jones

[ 385 Pa. Page 548]

OPINION BY MR. JUSTICE JONES

This is an appeal by the plaintiff partnership from the refusal of the court below to take off a compulsory non-suit entered at the trial of their action in assumpsit for the recovery of the value of a tractor which their employee had delivered to the defendant company for repair and which the defendant, upon due demand therefor, was unable to redeliver.

[ 385 Pa. Page 549]

At trial, the evidence adduced in the plaintiffs' case established that the defendant company operated a service garage for trucks and that, in conjunction therewith, it maintained what is known as a "truckstop" where the drivers of trucks in transit could rent cabins and obtain food during a layover. The size of the service garage was insufficient to admit of the storage therein of all of the trucks to be repaired. Hence, the practice was to keep within the garage only such trucks as were actually being worked upon. All other trucks were parked on a large adjacent lot of the defendant company which was also used for the parking of the vehicles of purely transient drivers who merely rented accommodations for themselves for the night. The trucks parked on the lot were left unattended. The keys to such trucks as had been repaired, together with a bill therefor, were tagged and kept during the daytime in the "parts room" of the garage and at night in the defendant's gasoline service station. The bill for repairs had to be approved by the driver's signature before the keys to his truck would be released. The arrangement with respect to the nighttime custody of the keys was for the convenience of drivers who might wish to depart in the early morning before the garage was open for business.

The driver of the tractor in suit left it (complete with a trailer for which no recovery is sought) for minor repairs at the defendant's garage. He had authority so to do and had dealt with the defendant company for some four to five years. He was familiar with the operation of the garage and the use of the conjoined parking lot as above described. He testified at trial that ordinarily he would request that the desired work on his truck be done "as soon as possible", but that he had no recollection whether he had so requested on the occasion here involved. In any

[ 385 Pa. Page 550]

    event, he did not actually request the redelivery of the tractor for three days. Nor could he recall whether he had stayed over night in one of the defendant's cabins during that period although the defendant's records showed that he had paid for the use of a cabin for each of the three nights. He further testified that he had, during his three-day layover, assisted on his route a fellow truck driver who was suffering from a back injury.

When the driver of the tractor in suit requested its return neither the keys for it, the bill for the work done on it nor the truck itself could be found anywhere on the defendant's premises. The driver thereupon notified the State police and the local authorities that the truck had been stolen. And, one of the Plaintiffs testified at trial that the truck had been stolen; he also admitted in cross-examination that he had instituted suit in behalf of ...


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